FEDERAL COURT OF AUSTRALIA
Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 568
Appeal from: Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1074 File number(s): VID 36 of 2023 Judgment of: WHEELAHAN J Date of judgment: 4 June 2025 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court – first appellant applied for Skilled - Independent (Class VB) (Subclass 885) Visa – Tribunal considered first appellant had not achieved sufficient points to qualify for visa – first appellant achieved “competent” English result on IELTS test – first appellant claimed he had achieved “proficient” English result – Schedule 2 of the Migration Regulations 1994 (Cth) – claimed test result could not be located – whether primary judge erred in applying Abebe v The Commonwealth of Australia (1999) 197 CLR 510 – whether Tribunal placed onus of proof on first appellant – whether primary judge erred in failing to address third ground of review – whether Tribunal reasoned illogically or irrationally – appeal dismissed. Legislation: Migration Act 1958 (Cth) ss 96(2), 348, 359, 359A
Migration Regulations 1994 (Cth) Schedule 2, reg 1.15D, 2.26AA
Taxation Administration Act 1953 (Cth) s 14ZZK(b)
Tribunals Amalgamation Act 2015 (Cth) Schedule 9, item 15AG
Cases cited: Abebe v The Commonwealth [1999] HCA 14; 197 CLR 510
ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439
Attorney-General(NSW)vQuin (1990) 170 CLR 1
AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; 278 CLR 512
Beezley v Repatriation Commission [2015] FCAFC 165
Bushell v Repatriation Commission (1992) 175 CLR 408
Ejueyitsi v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 328; 151 FCR 289
Kaur v Minister for Immigration & Border Protection [2017] FCAFC 184; 256 FCR 235
McDonald v Director-General of Social Security (1984) 1 FCR 354
Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550
Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; 264 CLR 541
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217,
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; 201 ALR 437
Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 59 Date of hearing: 20 May 2025 Counsel for the appellants Mr N Mutton Solicitor for the appellants Carina Ford Immigration Lawyers Counsel for the first respondent Mr J Barrington Solicitor for the first respondent Clayton Utz ORDERS
VID 36 of 2023 BETWEEN: HITESH KUMAR
First Appellant
SHIPRA SHIPRA
Second Appellant
SUMAN SUMAN
Third Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP…
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Details
- AGLC
- Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 568
- Case
- [2025] FCA 568
- Decision Date
CaseChat Overview and Summary
The case of Kumar v Minister for Immigration, Citizenship and Multicultural Affairs involves the appellants, who had applied for a Skilled - Independent (Class VB) (Subclass 885) Visa, challenging the Federal Circuit Court's decision that dismissed their application for judicial review of the Tribunal's decision to refuse their visa applications. The central issue before the court was whether the Tribunal had correctly assessed the first appellant's English language proficiency, which was crucial in determining his eligibility for the visa. The appellants argued that the Tribunal had imposed an incorrect onus of proof, misunderstood the law, and reasoned illogically or irrationally in its assessment of the first appellant's English language qualifications.
The court examined whether the Tribunal had correctly applied the Migration Regulations 1994 (Cth) in assessing the appellants' eligibility for the visa. The court found that the Tribunal had properly considered the evidence presented and had correctly applied the relevant regulations in determining that the first appellant had not achieved a proficient level of English within the required time frame. The court also noted that the Tribunal had made efforts to verify the appellant's claims but had not found any independently verifiable evidence to support the appellant's assertion of achieving a proficient level of English. The court concluded that the Tribunal's decision was based on a reasonable assessment of the evidence and that there were no jurisdictional errors or illogical reasoning.
In light of the findings, the court dismissed the appeal and ordered that the appellants pay the respondent's costs. The decision underscores the importance of providing independently verifiable evidence to substantiate claims made in visa applications and the tribunal's role in assessing the credibility of such claims.
The court examined whether the Tribunal had correctly applied the Migration Regulations 1994 (Cth) in assessing the appellants' eligibility for the visa. The court found that the Tribunal had properly considered the evidence presented and had correctly applied the relevant regulations in determining that the first appellant had not achieved a proficient level of English within the required time frame. The court also noted that the Tribunal had made efforts to verify the appellant's claims but had not found any independently verifiable evidence to support the appellant's assertion of achieving a proficient level of English. The court concluded that the Tribunal's decision was based on a reasonable assessment of the evidence and that there were no jurisdictional errors or illogical reasoning.
In light of the findings, the court dismissed the appeal and ordered that the appellants pay the respondent's costs. The decision underscores the importance of providing independently verifiable evidence to substantiate claims made in visa applications and the tribunal's role in assessing the credibility of such claims.
Orders
Orders of the court
1. The appeal is dismissed.
2. The appellants pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
By an application filed 25 May 2018 in the Federal Circuit Court of Australia, the appellants sought judicial review of the third Tribunal decision. On 23 December 2022 the primary judge dismissed the appellants’ application. The appellants then appealed that dismissal by a notice of appeal filed 20 January 2023, and that appeal is now before this Court.Background I will outline the features of the factual background that are relevant to the appellants’ grounds of appeal. A grant of the appellants’ visas was subject to the appellants meeting the applicable conditions specified in Schedule 2 in the Migration Regulations 1994 (Cth). Those conditions included that the appellants have a qualifying score when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act. The Tribunal’s decision to affirm the decision to refuse the visa applications turned on whether the first appellant had achieved sufficient points to qualify for the visa for which he had applied. The first appellant qualified for points on the grounds of his qualifications, his age, his studies in Australia, and his English language qualifications. He was held not to qualify for any points in relation to several specified areas. His points totalled 110, which was short of the 120 points specified for the particular visa by the Minister under s 96(2) of the Act for the purposes of reg 2.26AA of the Regulations. In arriving at the points given to the first appellant, the Tribunal allocated 15 points on the basis that he had competent English. If the first appellant had been assessed as having proficient English, then he would have achieved 25 points, thereby meeting the 120 points threshold: see Schedule 6B, Part 6B.3 of the Regulations. The ascertainment of English language skills was the subject of the Regulations. In relation to proficient English, reg 1.15D provided –1.15D Proficient EnglishIf a person applies for a General Skilled Migration visa, the person has proficient English if the person satisfies the Minister that:(a)the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and(b)the test was conducted in the 2 years immediately before the day on which the application was made; and(c) the person achieved a score specified in the instrument. The language tests specified by the Minister for the purposes of reg 1.15D that were applicable to the first appellant’s application included an International English Language Test System (IELTS) test score of at least 7 in each of four test components of speaking, reading, writing, and listening. Before the Tribunal was written evidence of IELTS test results for the first appellant for the following dates that preceded the visa application –(a)9 April 2005 – 05IN000421XXXH120A;(b)14 March 2009 – 08IN050553KUMH120A;(c)24 October 2009 – 09IN033793KUMH120G;(d)3 September 2011 – 11AU304870TH240G;(e)24 September 2011 – 11AU007093TH165G;(f)22 October 2011 – 11AU301314TH166G; and(g)5 November 2011 – 11AU306760TH240G.
Evidence
Evidence Before The Court
The Tribunal recounted the background, which included reference to the inquiries that the Tribunal itself had made. The Tribunal stated at R [26] that on 22 March 2018 it had verified IELTS test number 11AU304870TH240G, which was the test dated 3 September 2011 which the first appellant had nominated in his visa application. The test results qualified the first appellant as being competent rather than proficient in English. The Tribunal referred to the submissions that had been advanced on behalf of the appellants, including that the British Council’s records were either incomplete or incorrect, and that the first appellant relied on his assertion that he achieved a level of proficiency in a test that he sat in 2010, and that he accepted that he did not achieve a level of proficiency in his test of 3 September 2011. The Tribunal’s reasons at R [30]–[31] lie at the heart of the appeal –30.The Tribunal is of the view that the onus rests with an applicant to provide the necessary evidence to substantiate claims under any of the points categories in the relevant Schedule. However, in this case, the Tribunal has, at the request of the applicant’s representative, made every effort to try to substantiate the applicant’s claims to have achieved the standard of proficient English, but without success.31.The Tribunal does not accept that the advice of the British Council in India cannot be relied upon on the basis that the applicant sat an IELTS test in Australia on 3 September 2011, as this enquiry to IELTS International clearly requested confirmation of whether the applicant undertook a test at the British Council in India between 2010 and 2012 and the results of any test undertaken taken. The Tribunal therefore prefers the evidence of the British Council that the applicant did not undertake an IELTS test in India between 2010 and 2012, but that he did sit two tests in India on 14 March 2009 and 24 October 2009. Copies of these test results were provided and in both of these tests the applicant achieved a competent standard of English. Further, the IELTS test undertaken in Australia on 3 September 2011 likewise resulted in a standard of competent English.32.The applicant has been unable to substantiate his claim, with any independently verifiable evidence, that he achieved the standard of proficient English, within the prescribed period. On this basis the Tribunal can only allocate the points entitlement for competent English which has been demonstrated to the Tribunal’s satisfaction.(Emphasis in bold added.)The application to the Federal Circuit Court Before the Federal Circuit Court was an amended application with three grounds of review. Only grounds of review 2(a) and 3 are relevant to the appeal, and they were in the following terms –2.In assessing whether the First Applicant engaged item 6B31 in Part 6B.3 of Sched 6B to the Regulations, the Tribunal:a.misunderstood the law by imposing an onus of proof on the First Applicant; and/or...Particulars(i)As to ground 2(a), the Regulations did not impose an onus of proof on the First Applicant yet the Tribunal proceeded on the basis that ‘the onus rests with an applicant to provide the necessary evidence to substantiate claims under any of the points categories in the relevant Schedule’ (paragraph 30 of the reasons, emphasis added). That was a jurisdictional error....3.In assessing whether the First Applicant engaged item 6B31 in Part 6B.3 of Sched 6B to the Regulations, the Tribunal reasoned illogically or irrationally in finding that the First Applicant did not sit any IELTS test in India between 2010 and 2012. The primary judge’s reasons
Decision
Reasons for decision
The submissions of 9 April 2018 were supported by a statutory declaration of the first appellant made 9 April 2018 in which he declared that he sat for at least two IELTS tests in India in 2010, and that he could not provide evidence of them because the tests were undertaken so long ago, that no records were available, and that his test results were misplaced by his family.The Tribunal’s decision On 23 April 2018, the Tribunal published its decision, which was accompanied by a statement of reasons (R). The member who made the decision was not the same member who had conducted the hearing on 1 February 2017. The member stated that she had listened to the recording of the hearing on 1 February 2017 and had considered the written evidence before the Tribunal. The member stated that she did not consider a further hearing to be necessary. Nothing turns on the manner in which the Tribunal proceeded. The Tribunal considered the totality of issues relating to whether the first appellant achieved at least 120 points. Of relevance to the appeal is only the Tribunal’s consideration of the first appellant’s English language qualifications. The Tribunal recounted the background, which included reference to the inquiries that the Tribunal itself had made. The Tribunal stated at R [26] that on 22 March 2018 it had verified IELTS test number 11AU304870TH240G, which was the test dated 3 September 2011 which the first appellant had nominated in his visa application. The test results qualified the first appellant as being competent rather than proficient in English. The Tribunal referred to the submissions that had been advanced on behalf of the appellants, including that the British Council’s records were either incomplete or incorrect, and that the first appellant relied on his assertion that he achieved a level of proficiency in a test that he sat in 2010, and that he accepted that he did not achieve a level of proficiency in his test of 3 September 2011. The Tribunal’s reasons at R [30]–[31] lie at the heart of the appeal –30.The Tribunal is of the view that the onus rests with an applicant to provide the necessary evidence to substantiate claims under any of the points categories in the relevant Schedule. However, in this case, the Tribunal has, at the request of the applicant’s representative, made every effort to try to substantiate the applicant’s claims to have achieved the standard of proficient English, but without success.31.The Tribunal does not accept that the advice of the British Council in India cannot be relied upon on the basis that the applicant sat an IELTS test in Australia on 3 September 2011, as this enquiry to IELTS International clearly requested confirmation of whether the applicant undertook a test at the British Council in India between 2010 and 2012 and the results of any test undertaken taken. The Tribunal therefore prefers the evidence of the British Council that the applicant did not undertake an IELTS test in India between 2010 and 2012, but that he did sit two tests in India on 14 March 2009 and 24 October 2009. Copies of these test results were provided and in both of these tests the applicant achieved a competent standard of English. Further, the IELTS test undertaken in Australia on 3 September 2011 likewise resulted in a standard of competent English.32.The applicant has been unable to substantiate his claim, with any independently verifiable evidence, that he achieved the standard of proficient English, within the prescribed period. On this basis the Tribunal can only allocate the points entitlement for competent English which has been demonstrated to the Tribunal’s satisfaction.(Emphasis in bold added.)The application to the Federal Circuit Court
Ratio Decidendi
Legal Principle Established
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